Respondents' First Set of Interrogatories by ewi40027

VIEWS: 0 PAGES: 9

									                           UNITED STATES OF AMERICA
                      BEFORE THE FEDERAL TRADE COMMISSION
                         OFFICE OF ADMINISTRATIVE LAW JUDGES



                                               )
In the Matter of                               )
                                               )
TELEBRANDS CORP.,                              )         Docket No. 9313
                                               )
TV SAVINGS, LLC, and                           )         PUBLIC DOCUMENT
                                               )
AJIT KHUBANI.                                  )
                                               )

                   RESPONDENTS’ FIRST SET OF INTERROGATORIES

       Pursuant to Rule 3.35 of the Federal Trade Commission’s Rules of Practice, Respondents

Telebrands Corp. (“Telebrands”), TV Savings, LLC (“TV SAVINGS”) and Ajit Khubani

(“Khubani”) hereby propound these Interrogatories to which complaint counsel shall respond

separately and fully, in writing and under oath.

                                        INSTRUCTIONS

       1.      These instructions and definitions should be construed to require answers based

upon the actual or constructive knowledge of, and information available to, complaint counsel as

well as your attorneys, representatives, investigators, and others acting on your behalf.

       2.      If, after exercising due diligence, you cannot answer the following Interrogatories,

so state and answer to the extent possible, specifying your inability to answer to the remainder.

State whatever knowledge or information you have regarding the unanswered portion, and

identify and describe in detail what you did in attempting to secure the unknown information.

Estimated dates should be given when, but only when, exact dates cannot be supplied. Any

estimates should be identified as such. The sources and means of derivation of each estimation

should be specifically set forth.
         3.    If you object to a portion or an aspect of any Interrogatory, state the grounds of

your objection with specificity and answer the remainder of the Interrogatory.

         4.    If, in answering these interrogatories, you encounter any ambiguities when

construing a question, instruction, or definition, your answer shall set forth the matter deemed

ambiguous and the construction used in answering.

         5.    Where a claim of privilege is asserted in responding or objecting to any discovery

requested in these interrogatories and information is not provided on the basis of such assertion,

you shall, in your response or objection, identify the nature of the privilege (including work

product) which is being claimed. When any privilege is claimed, you shall indicate, as to the

information requested, whether (a) any documents exist, or (b) any oral communications took

place.

         6.    If you elect to specify and produce business records in answer to any

interrogatory, the specification shall be in sufficient detail to permit Respondents to locate and

identify the business records from which the answer may be ascertained.

         7.    For every interrogatory that requests you to state the basis of an allegation,

contention, assertion, or claim, answer as follows:

               (a) Describe, in specific detail of the factual basis for the allegation, contention,

                   assertion, or claim;

               (b) Identify every person who has knowledge of facts relating to the allegation,

                   contention, assertion or claim, by providing the person's full name, present or

                   last known address and telephone number, and the present or last known place

                   of employment (Once a person has been identified in accordance with this




                                                  2
                   subparagraph, only the name of that person need be listed in response to

                   subsequent discovery requesting the identification of that person);

               (c) Identify every communication relating to the allegation, contention, assertion

                   or claim;

               (d) Identify every document relating to the allegation, contention, assertion or

                   claim by providing a specific and individual identification of each document

                   or thing, including the type of document or thing and a brief description

                   consisting at least of (i) the type of document or thing; (ii) its general subject

                   matter; (iii) its date; (iv) its author(s), addressee(s) and recipient(s); (v) the

                   present location of each document or thing and each copy thereof; (vi) the

                   name, job title, employer, and address of the custodian of the document or

                   thing; and (vii) if a copy of the document or thing has been previously

                   produced to any party, so state and specifically and individually describe the

                   previously supplied copy by production numbers or otherwise.

                                          DEFINITIONS

       Notwithstanding any definition below, each word, term, or phrase used in these

Interrogatories is intended to have the broadest meaning permitted under the Federal Trade

Commission’s Rules of Practice.

       A.      The terms “Complaint Counsel,” “you,” or “your” means the United States

Federal Trade Commission, including its employees, agents, attorneys, consultants,

representatives, officers, and all other persons acting or purporting to act on its behalf, other than

the entities that are identified in Practice Rule 3.35(a) as being outside the scope of discovery by

interrogatories.




                                                   3
       B.      The term “EMS device,” “EMS devices,” or “EMS products” means electronic

muscle stimulation devices including powered muscle stimulation products, as that term is

defined in 21 C.F.R. 890.5850, and transcutaneous electric nerve stimulator products, as that

term is defined in 21 C.F.R. 882.5890, and which are regulated by the Food and Drug

Administration.

       C.      The term “person” is defined as any natural person or any business, legal or

governmental entity or association.

       D.      The term “communication” means the transmittal of information by any means.

       E.      The terms “document” and “documents” are synonymous in meaning and equal in

scope to the usage of the terms as defined by 16 C.F.R. § 3.34(b), and includes, without

limitation, any written material, whether typed, handwritten, printed or otherwise, and whether in

draft or final form, of any kind or nature, or any photograph, photostat, microfilm or other

reproduction thereof, including, without limitation, each note, memorandum, letter, telegram,

telex, circular, release, article, report, prospectus, memorandum of any telephone or in-person

conversation, any financial statement, analysis, drawing, graph, chart, account, book, notebook,

draft, summary, diary, transcript, computer data base, computer printout or other computer

generated matter, contract or order, technical report, laboratory report or notebook, engineering

report, patent, registration or mark, application for a copyright, trademark or patent, patent

appraisal, infringement search or study, and all mechanical and electronic audio and video

recordings or transcripts thereof, and other data compilations from which information can be

obtained and translated; if necessary, by Defendant/Counter-Plaintiffs into reasonably usable

form. Electronic mail is included within the definition of the terms “document” or “documents.”

A draft or-non-identical copy is a separate document within the meaning of the term.




                                                  4
       F.      The term “relating” (or “relate”) shall mean: pertaining, describing, referring,

evidencing, reflecting, discussing, showing, supporting, contradicting, refuting, constituting,

embodying, containing, concerning, identifying, or in any way logically or factually connected

with the matter discussed.

       G.      The words “or” and “and” shall be read in the conjunctive and not in the

disjunctive wherever they appear, and neither of these words shall be interpreted to limit the

scope of a request. The use of a verb in any tense shall be construed as the use of the verb in all

other tenses and the singular form shall be deemed to include the plural, and vice-versa. The

singular form of any noun shall be deemed to include the plural, and vice-versa.

       H.      The present tense includes the past and future tenses. The singular includes the

plural, and the plural includes the singular. “All” means “any and all”; “any” means “any and

all.” “Including” means “including but not limited to.” “And” and “or” encompass both “and”

and “or.” Words in the masculine, feminine or neuter form shall include each of the other

genders.

                                     INTERROGATORIES

INTERROGATORY NO. 1

       Identify every representation that you contend is false or misleading that the Respondents

expressly made in the Ab Force advertisements and state the basis for your contention.

INTERROGATORY NO. 2

       Identify every advertising claim that you contend is false or misleading that the

Respondents made by implication in the Ab Force advertisements and state the basis for your

contention.




                                                 5
INTERROGATORY NO. 3

       Identify every EMS device other than Ab Tronic, AB Energizer, and Fast Abs that was

offered for sale, sold or distributed in the United States during or before the time period in which

the Ab Force advertisements appeared, including, without limitation, the person who offered for

sale, sold or distributed each such device and the sale price.


INTERROGATORY NO. 4

       If you contend that any EMS device identified in your answer to Interrogatory No. 3 was

referenced, either expressly or by implication, in the Ab Force advertisements, state the basis for

your contention.


INTERROGATORY NO. 5

       If you contend that there were EMS devices other than Ab Tronic, AB Energizer, and

Fast Abs that were offered for sale, sold or distributed in the United States during or before the

time period in which the Ab Force advertisements appeared that were not referenced, either

expressly or by implication, in the Ab Force advertisements, state the basis for your contention.


INTERROGATORY NO. 6

       If you contend that Respondents made the representations identified in paragraph 19 of

the Complaint, either expressly or by implication, without reference to other EMS products or

infomercials, state the basis for your contention.


INTERROGATORY NO. 7

       Identify every evaluation, survey, or study conducted by you or on your behalf to assess

consumer reaction to or consumer perception, comprehension, understanding, "take-away," or




                                                  6
recall of statements or representations made in the Ab Force advertisements or in any EMS

device advertisement.

INTERROGATORY NO. 8

       Describe all investigations conducted by you or on your behalf relating to any advertising

claims or representations relating to the Ab Force product or any other EMS device and describe

every conclusion regarding such investigation, and identify all persons with knowledge of such

investigation.


INTERROGATORY NO. 9

       Identify each person whom you expect to call as an expert witness at hearing, state the

subject matter on which the expert is expected to testify, and state the substance of the facts and

opinions on which the expert is expected to testify and a summary of the grounds for each

opinion.

Dated: October 23, 2003                       Respectfully submitted,


                                              _____________________________
                                              Edward F. Glynn
                                              Theodore W. Atkinson
                                              VENABLE, LLP
                                              575 7TH Street, N.W.
                                              Washington, D.C. 20004-1601
                                              Tel: (202) 344-4000
                                              Fax: (202) 344-8300
                                              E-Mail: efglynn@venable.com
                                                      twatkinson@venable.com




                                                 7
                   CERTIFICATES OF SERVICE AND CONFORMITY

        I hereby certify that on October 23, 2003, pursuant to Federal Trade Commission Rules
of Practice 4.2(c) and 4.4(b), I caused the foregoing Respondents’ First Set of Interrogatories to
be filed and served as follows:

       (1)     an original and one (1) paper copy filed by hand delivery and an electronic copy
               in Microsoft Word format filed by e-mail to:

               Donald S. Clark, Secretary
               Federal Trade Commission
               600 Pennsylvania Avenue, N.W.
               Rm. H-159
               Washington, D.C. 20580
               E-mail: secretary@ftc.gov

       (2)     one (1) paper copy served by hand delivery to:

               The Honorable Stephen J. McGuire
               Chief Administrative Law Judge
               600 Pennsylvania Avenue, N.W.
               Rm. H-112
               Washington, D.C. 20580

       (3)     one (1) paper copy by first-class mail and by facsimile to:

               Constance M. Vecellio, Esq.
               Senior Counsel
               600 Pennsylvania Avenue, N.W.
               NJ-2115
               Washington, D.C. 20580
               Fax: (202) 326-2558

       (4)     and one (1) paper copy each by first class mail to:

               Walter Gross
               600 Pennsylvania Avenue, N.W.
               NJ-2127
               Washington, D.C. 20580

               Amy Lloyd
               600 Pennsylvania Avenue, N.W.
               NJ-2260
               Washington, D.C. 20580




                                                 8
        I further certify that the electronic copy sent to the Secretary of the Commission is a true
and correct copy of the paper original, and that a paper copy with an original signature is being
filed with the Secretary of the Commission on the same day by other means.



                                              ____________________________________
                                              Theodore W. Atkinson, Esq.




                                                  9

								
To top